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How Marx transcended "the rule of law"

Submitted by AWL on 4 October, 2018 - 3:11
Author: Eduardo Tovar

With the passing of Robert Fine on 9 June 2018, the British left lost a truly exceptional figure. A respected sociologist at the University of Warwick, Fine was a long-time sympathiser of Workers’ Liberty. Though he was less involved in frontline activism towards the end of his life, he never lost his commitment to working-class struggle. In short, Fine never became a stereotypical “Marxist academic”.

To highlight his impressive body of literature I am going to review five of his major books, starting with Democracy and the Rule of Law: Marx’s Critique of the Legal Form (Blackburn Press 2002; originally published by Pluto Press in 1984).

Context

Fine seeks to reappraise Marx’s perspectives on the relationship between law, the state, and private property. He does so by placing Marx in light of the classical jurists who preceded him, as well as later scholars seeking either to build upon or to criticise the Marxist tradition. For context, as in other academic fields, there is a tendency in legal and political philosophy to characterise Marxist approaches as “economic reductionism”. This characterisation is often rooted in a crude explication of the “base” and “superstructure” metaphor.

In other words, the standard claim is that, as Marx reduces all law to nothing more than an ideological “superstructure” which obscures class power and exploitation in the economic “base” of productive forces, Marxism fails to grasp (a) the more complex nature of law itself and (b) the rule of law’s merit as a political-philosophical value. As a result, later Marxist figures who clearly do not reduce law to mystification and ideology are frequently treated as having introduced a level of sophistication or nuance absent in the writings of Marx himself.

Admittedly, some of this uncharitable characterisation of Marx stems from people reading about him secondhand from later authors within the Marxist tradition. As Fine himself puts it, there are “two polar versions of Marxism” that are “equally mistaken”. In the first version, Marxism appears as little more than an extension of liberalism, emphasising the achievements of Parliamentary democracy, the rule of law, and civil liberties in the face of both private power and state tyranny. In the second version, Marxism appears as little more than a negation of liberalism, presenting liberal conceptions of freedom, democracy, and equality as nothing more than fraudulent instruments of class rule.

Moreover, one should bear in mind that Fine wrote the book at a point when democracy and legality were being heavily re-appraised from both the left and the right. This was the era of civil liberties falling victim to the “wars” on crime and drugs; of Thatcher turning the brutal might of the state machinery upon the miners’ strike; of Labour leader Michael Foot denouncing extra-Parliamentary struggle against ruling class power as “undemocratic”.

To be clear, in his re-examination of Marx’s analysis of the legal form, Fine does not seek to build an entire Marxist theory of law, nor does he speculatively attempt to construct the complete critique of jurisprudence that Marx intended to write, but never did. Nevertheless, Fine’s approach provides novel and lucid insights into how Marx appreciated the new freedoms gained with the rise of bourgeois-liberal frameworks in capitalist modernity, yet also sought to transcend them.

Classical Jurisprudence

To start with, Fine takes pains not to be overly dismissive of the key contributors to classical jurisprudence. By this Fine means 17th-18th century social contractarian and/or classical liberal thinkers (such as Thomas Hobbes, Jean-Jacques Rousseau, and Adam Smith) as well as GWF Hegel. To Fine, these diverse philosophers all helped move juristic and political thought past traditional versions of natural law theory, which identified at least two different kinds of law: natural law, which “was supposed to emanate from God or nature or some other moral authority transcending earthly power”, and positive law, which is “posited by human beings”. (p. 19)

It is true that traditional natural law theory allowed for criticism of bourgeois property relations insofar as it understood that “owners had neither absolute rights to use and abuse their property according to their will nor exclusive rights under all circumstances to bar others from their property. (pp. 14-15) Nevertheless, traditional natural law also assumed that the poor had obligations to the propertied, which ‘expressed relations of personal dependence, servility and bondage’ (p. 18). Likewise, ‘the [traditional] obligations attached to property served to exclude the majority from new forms of property’. (ibid) For example, peasants were unable to access private property. Significantly, by characterising some laws as eternal and immutable, traditional natural law theorists restricted human agency in the process of lawmaking.

Accordingly, the great advance of classical jurisprudence over traditional natural law theory was its presentation of law as ‘a human product in its entirety’: ‘[l]aws are created by people and can therefore be changed by people’. (p. 20) This was the value in, for example, Hobbes’ theory of ‘public authority’, Rousseau’s theory of the ‘general will’, Smith’s theory of ‘natural liberty’, and Hegel’s theory of the ‘rational state’. In their distinct manners, they all revealed law’s human origins and subjected legal institutions to rational scrutiny.

However, in demolishing traditional natural law, the theorists of classical jurisprudence naturalised positive law in its place: ‘they concluded that it is in the nature of humans to “posit law”, and “presented bourgeois private property, law and state as the embodiments of reason” (p. 66). Whilst such theorists had critiqued traditional natural law’s “isolation of reason from human history”, they ended up projecting “the achievements of human history as the realization of reason”. (ibid) This is the key to understanding how Marx related to these theorists. Marx recognised the advances of classical jurisprudence, but saw these advances as incomplete and thus sought to radicalise the break from natural law they had already achieved.

Marx’s Four Stages

As Fine deftly shows, Marx’s radicalised critique had several overlapping, but contrasting, stages. In his first stage, Marx looked to Hegel’s attempt to synthesise individual freedom and collective authority with the idea of the external authority of the state as the embodiment of rational will. In contrast to Hegel, Marx sought to demonstrate how little the existing state corresponds with the ideal of the rational state. He used the laws on, for example, wood theft and press censorship to illustrate the corruption of the state’s universality “through the subordination of the state to private interests or through the elevation of the state as a special power above the people”. (p. 70)

In his second stage, marked by such essays as On the Jewish Question (1844), Marx shifted towards emphasising the insufficiency of constructing a rational state by revealing the limits of political emancipation. He began to contrast “the universality and freedom inherent in the idea of the state with the egoism, inequality, alienation and dependence associated with private property”. (p. 205) This is because “[t]he same historical process which released the public domain from its private fetters also released the pursuit of private interest from all social obligations”. (ibid) Accordingly, political emancipation through a rational state is necessary for social emancipation, but is not itself enough since a rational state remains “compatible with enslavement within civil society” (p. 206)

In his third stage, Marx completely moved away from critiquing “existing authority relations based on how much or how little they corresponded with the idea of a ‘rational state’”. (p. 86) This is because the notion of the “rational state” presupposes that “there exists, as a timeless ideal, a form of state which genuinely represents the will of the people”. (pp. 87-88) Marx eventually found that, rather than the essence of the state being corrupted by social relations external to it, the essence of the state is in social relations.

Accordingly, in such works as The German Ideology (1846) Marx and Engels began to characterise the state itself as an “alien form”: its communality is purely formal and, by its very nature, it “represents the alienation of power from the mass of the people”. (p. 206) Formal freedom and equality before the law are not only insufficient, but also “engender unfreedom and inequality as their substantive consequence”. (ibid) At this point, Marx “derived the purely formal freedom and equality in the state from the purely formal freedom and equality in civil society”; “private property, law and the state no longer appeared as antagonistic social forces but as mutually complementary”. (ibid) As such, human emancipation calls not for the reconstruction of the state, but for its dissolution.

In his fourth and final stage, marked by such mature writings on economics as Grundrisse (1857-58) and Capital (1867-83), Marx began to consider how “capitalist relations of production express themselves one and at the same time through the juridic forms of private property, law, and the state and the economic forms of value, price, money, capital, profit, and so on”. (p. 207) Rather than one being logically privileged over the other, economic and juridic forms “co-exist as the mutually required ways in which definite productive relations must express themselves”. (ibid)

This marks a shift from thinking in terms of “base-superstructure” to thinking in terms of “form-content”. An object’s “form” or “surface” is no less real than its inner content. In this instance, juridic forms, such as the institution of contract, “should not be conceived of as mere masks concealing class relations but rather as real mediations” of those class relations. (ibid) At the same time, “the form of an object cannot be separated from its content, so juridic forms should not be abstracted as timeless ideals apart from the relations between individuals that give rise to them”. (ibid)

Fine’s breakdown of the different stages in Marx’s critique is significant for several reasons. First, it shows that most portrayals of Marx’s standpoint on law as “instrumentalist” or “reductionist” stem from isolated readings of the third stage Fine identifies; that is, the stage Marx had reached by The German Ideology.

Second, by adopting a method of critiquing jurisprudence that parallels the method Marx developed in critiquing political economy, Fine demonstrates how a Marxist analysis of law should point not to its illusory nature, but to its contradictory nature. In other words, like money, law has multiple functions that it performs in necessarily contradictory ways: it is simultaneously “a measure of right”, a “normative standard”, “a medium of association”, and “a means of regulating relations”. (pp. 139-46)

Whilst the state can overcome some of law’s internal antagonisms, in doing so it creates new contradictions: “[w]orkers need the social power of the state against the private rights of capital, but they do not need the state’s alienated form”, whereas “[c]apitalists need the state’s alienated form as its guarantee against labour, but live in apprehension of its social power”. (p. 154) This antagonistic nature is significant for understanding why a Marxist view of law and the state should be neither entirely nihilistic or entirely triumphalist about bourgeous legal-political forms: these forms provide genuine kinds of freedom, but their liberationary potential is necessarily limited by their inherent contradictions, hence why these forms still need to be transcended.

Third, Fine displays how, by analysing them as emergent from historical conditions rather than timeless reason, Marx was able to understand law and the state as evolutionarily related, but distinct. In other words, the state emerges out of law as a more complex form of social life, but in making this transition, “the state acquires properties that go beyond the properties of law as such”, just as “money-capital has properties not possessed by money as such”. (p. 146) As well as showing that Marx acknowledged non-state forms of law long before the explosion of literature on “legal pluralism” made this topic fashionable in the academy, this helps illustrate how the state takes on forms other than law: for instance, the army and the bureaucracy.

Pashukanis

In breaking down the different stages in Marx’s critique, Fine lays the groundwork for his critical analysis of three 20th century theorists who view themselves as either contributing to or departing from the Marxist tradition: namely, Evgeny Pashukanis, EP Thompson, and Michel Foucault. In his 1924 masterwork Law and Marxism, Pashukanis put forward his theory that law derives from commodity exchange, as opposed to commodity production. To Pashukanis, the elemental legal category of “the juridic subject” arises out of relations of exchange between private property owners and all other legal categories arise in turn from “the juridic subject”.

From this fundamental connection between legal regulation and commodity exchange, Pashukanis added to the idea that the state will “wither away” under socialism by theorising that the transition to communism will involve two replacement processes. Planned production and distribution will replace market relations, and “technical” forms of regulation will replace legal forms. As Fine points out, whilst Pashukanis deserves praise for attempting to derive a Marxist theory of law from Marx’s own method of critiquing political economy, Pashukanis’ “notion of ‘the legal form’ as a single entity obscures the distinctions between private property, law, and the state”. (p. 8)

Moreover, Pashukanis “lost all sight of the democratic nature of Marx’s critique of the state, according to which its withering away was to be the result of its ever more radical democratization”. (p. 169) In “the context of a regime which increasingly identified the bureaucracy with the state and the state with the people”, and which would soon transform into Stalinist totalitarianism, Pashukanis’ insistence that regulation after capitalism would have a technicist character was politically disastrous. (ibid)

Thompson

In his 1975 book Whigs and Hunters, the Marxist historian Thompson famously described the rule of law as an “unqualified human good”. He pointed to how, in order to maintain the law’s perceived legitimacy, the ruling class has to be seen respecting the legal process, causing them to become trapped by their own rhetoric. In other words, even if law is a useful tool for the ruling class to achieve their ends, the mere fact that these ends must be achieved through the medium of recognisably legal forms and procedures is itself a valuable restraint on class power.

Thompson additionally observes how law must have at least some elements that people will find desirable if it is to be accepted as legitimate by its subjects and function effectively as a form of control. To build his defence of the rule of law, Thompson points to how in the 18th century struggles over land rights that culminated in the Black Act of 1723, which imposed the death penalty against poachers making use of Crown and public lands that had been fenced off, the law featured heavily on both sides: the arguments were framed as competing definitions of property.

Although Fine recognises the importance of Thompson’s criticisms of cynically viewing law as nothing more than a fraudulent instrument of class oppression, he skilfully reveals how Thompson goes too far in the opposite direction. First, Fine points out how Thompson is somewhat guilty of building a strawman. In other words, very few Marxists have ever actually possessed the totally nihilistic view of law Thompson polemicises against.

Second, Fine demonstrates the frequent lack of correspondence between, on the one hand, the universal, egalitarian, and humanistic qualities Thompson associates with the rule of law and, on the other hand, the historical record of 18th century plebeian struggles in England from which Thompson draws his conclusions about the rule of law. In other words, for a historian, Thompson often presents the rule of law in a very ahistorical light. He can only treat the “unequal privileges” and “fusion of private and public functions” readily observable in the law of the 18th century as a ‘corruption’ of the rule of law “by turning the law itself into a timeless ideal rather than a specific social form of regulation coming into being during this period”. (p. 187)

Third, and perhaps most significantly, in seeking to defend the rule of law from economic reductionism, Thompson “too reduces the multiple functions of law to one essential function: that of inhibiting power”. (p. 175) This leads to Thompson to focus exclusively on that which the working class has gained from the emergence of bourgeois legal-political forms to the point that he loses sight of these forms’ inherent limits. In other words, despite Thompson’s marked contrast to Pashukanis, he similarly “surrenders [Marx’s] vista of a far more radical democracy than that envisaged in liberal constitutions”. (p. 188)

This is why, whilst Thompson is correct to defend civil liberties against the naked power of private property or state tyranny, and this defence entails allying with liberals, Marxists must additionally struggle for the democratisation of existing legal-bureaucratic structures and for the organised self-activity of workers outside of these structures. For example, it is not enough to call for legal restraints on police powers in the form of due process rights: one should also recognise political and unofficial restraints, such as democratic oversight and self-defence groups, and advocate these with the ultimate aim of abolishing the police entirely. (p. 176)

Foucault

This leads us to the last 20th century theorist Fine covers: the French poststructuralist philosopher Michel Foucault. Foucault rejected notions of power that centralised it in the state or in a particular class. Across such works as Discipline and Punish (1975) and the collected essays in Power/Knowledge (1982), Foucault came to think of power as far more diffuse, with multiple sources, such as the school and the asylum. These multiple sources of power have corresponding sources of resistance: in the school and the asylum, such resistance would come from the pupils and the inmates. Significantly, these struggles are localised and possess their own integrity.

Foucault’s view of knowledge and power as intrinsically interconnected led him to argue that “the privileged position of science should not be automatically justified” (p. 191) and to present truth as “a function of power, not of reason”. (p. 199) He also refused to see changes in disciplinary systems over time as progress. To use his famous example, the shift in the penal system from the retributionary punishment of prisoners to their rehabilitation into good, useful citizens came about not because of humanitarian reform, but to create a newer, more systematic form of disciplinary control over individuals.

Whilst Foucault provides stimulating analyses of different manifestations of depersonalised authority, his overbroad, formalist understanding of power and his association of collectivity with despotism lead him down a dangerous path. Since, unlike Marx, Foucault refuses to see power as ‘an expression of social relations between people’, power ends up mysteriously appearing as “a self-sufficient entity, whose only purpose is the maintenance of its own mastery” (p. 192-96).

Similarly, Foucault’s polemics against searching for truth through interpretation, as seen in his scepticism towards science, quickly run into their own problems since “Foucault himself cannot avoid ‘interpretation’”. (p. 194) Such problems become especially apparent once Foucault finds a contradiction between the juridic and disciplinary aspects of power in modern capitalist society, since he can only resolve this contradiction by interpreting the former as a mask and the latter as real.

Moreover, by viewing the humane reforms of the penal system as nothing more than a guise for social control, rather than as a reflection of an actual contradiction within law and the state themselves, Foucault is unable to identify and build upon the potential to create new forms of authority that would ‘genuinely humanize those who engage in anti-social behaviour’. (p. 201) In other words, “[t]he point is not merely to negate liberalism abstractly”, but “to transcend liberalism theoretically and practically from a more social form of collective authority”. (p. 202)

Conclusion

Overall, Democracy and the Rule of Law is an outstanding work. By both highlighting and taking methodological inspiration from Marx’s more mature writings, Fine rescues Marx’s critique of the legal form from the sadly numerous authors who have long presented Marxist legal theory as either a one-sided repudiation or a one-sided valorisation of liberal ideals. Many a pretentious jurisprudence lecturer will doubtless continue to push the standard narrative of Marx as an economic reductionist with nothing serious to say about the rule of law, and of Thompson as the Marxist who saved the rule of law from this reductionism. Thanks to Fine, students of legal and political theory have ample material to combat such facile engagement with Marxist thought.